__________________________ GRANTED: October 2, 1992 __________________________ GSBCA 11956-P, 11961-P INTEGRATED SYSTEMS GROUP, INC., Protester/Intervenor, and GOVERNMENT COMPUTER SALES, INC., Protester, v. DEPARTMENT OF LABOR, Respondent, and MANAGEMENT SYSTEMS DESIGNERS, INC., Intervenor. Stephen L. Mills, Vice President Marketing, Integrated Systems Group, Inc., Vienna, VA, appearing for Protester/Intervenor. Robert Fowler, Chief Executive Officer, Government Computer Sales, Inc., Redmond, WA, appearing for Protester. Frank P. Buckley and Michele W. Curran, Department of Labor, Washington, DC, counsel for Respondent. William W. Goodrich, Jr., Thomas W. A. Barham, and Michele A. Masiowski of Arent Fox Kintner Plotkin & Kahn, Vienna, VA, counsel for Intervenor. Before Board Judges BORWICK, NEILL, and VERGILIO. VERGILIO, Board Judge. On July 31, 1992, the Board received a post-award protest from Integrated Systems Group, Inc. (ISG). On August 6, the Board received a protest from Government Computer Sales, Inc. (GCS), in which ISG intervened as of right. In a sealed bid procurement, the respondent, the Department of Labor, had awarded a contract to the low bidder, Management Systems Designers, Inc. (MSD), an intervenor of right in both protests. The protesters contend that awardee's bid is non-responsive, such that the agency made an improper award. The Board concludes that the issues of protest were timely filed--having been raised within ten working days of learning the objectionable bases of the agency's actions. Each protester is an interested party to pursue the protest--each contends that lower priced bidders are non-responsive and/or non-responsible; the agency is not in a position to make conclusive determinations based upon the face of the bids. The Board grants the protests. The agency made an award to a bidder offering a system utilizing a microprocessor (chip) operating at other than its designated speed, and thus, in contravention of a solicitation requirement. The agency should have deemed that bid non-responsive. Findings of Fact 1. The agency issued a sealed bid solicitation to procure hardware, software and services under an indefinite quantity contract. Protest File, Exhibit 37 at C-1 ( C.2), I-22 ( I.16), L-11 ( L.19). 2. In particular, one item under the solicitation is the "IBM PS/2 Model 57SX with memory cache option having the following characteristics, or equivalent." Protest File, Exhibit 37 at C-2 ( C.5.1). Mandated characteristics include the following: Twenty (20) megahertz Intel 80386SX or 80386DX or 80486DX CPU or equivalent (PS/2 Model 57SX uses Intel 80386SX); Twenty (20) megahertz Intel 80387SX math coprocessor, or equivalent, for use with machine. If the machine uses an 80386DX CPU then the appropriate 80387DX math coprocessor should be supplied. If the machine uses a 80486DX CPU then no additional math coprocessor is required. Id. ( C.5.1.2 and C.5.1.3). 3. A solicitation-specified hardware technical requirement provides that: All required microprocessor speeds are for the microprocessor running in normal operation mode at the standard clock speed indicated in the design specifications for the microprocessor. Protest File, Exhibit 37 at C-9 ( C.7). 4. Through the solicitation the agency reserves the right to require a functional capabilities demonstration (FCD) prior to award. Protest File, Exhibit 37 at M-2 ( M.5). 5. The agency received bids. MSD submitted the low bid. The agency deemed the second low bid to be non-responsive. Protest File, Exhibits 11, 19. Awardee's bid 6. The low bid does not offer the brand name item; rather it identifies the NCR Model 3320. The base configuration of that model (which includes an Intel 80386SX processor) will be upgraded with a processor board configured with an Intel 80486 processor that installs in a dedicated CPU upgrade slot. Protest File, Exhibit 12 at B-1 ( B.1, CLIN 1000) and Technical Response at 2 ( C.5.1.2). The bid also provides "component information" by filling in the underscored areas: Intel CPU or equivalent Manufacturer's Name: Intel Address: Hillsboro, OR Product Name (if any): 80486/20 Product make, model, or catalog description: 486/20 Microprocessor Id., at B-3 ( B.2.A.1). 7. Regarding the salient characteristics, finding 2, awardee's bid contains a technical response which provides: The NCR 3320 will be configured with a Intel 80486DX processor. The 486 processor is an upgrade to the base configuration which includes an Intel 80386SX processor. The upgrade consists of a processor board that installs in a dedicated CPU upgrade slot located on the system board. The proposed NCR Model [3]320 is configured with a 80486DX CPU, the math co-processor is part of the 486 CPU configuration and as such no additional co-processor is required. Protest File, Exhibit 12, Technical Response at 2 ( C.5.1.2, C.5.1.3). Descriptive literature attached to, and referenced in, the low bid provides: Ability to Upgrade the Processor The 3320 offers the ability to upgrade its process from a 20MHz 386sx-20 microprocessor to a 20 MHz 486DX processor. This provides significant performance improvement and protects the user's investment in their hardware. Id., NCR Model 3320 Product Guide at 66. 8. The low bid includes NCR benchmark results for the 3320 computer. The results identify the "Intel 80486, 20 MHz," as the main processor utilized during that testing. Protest File, Exhibit 12, NCR Benchmark Results at 2. 9. The technical portion of the low bid states that all offered equipment meets or exceeds the hardware technical requirements, and that all delivered units will comply with the specifications. Protest File, Exhibit 12, Technical Response at 15 ( C.7). 10. The agency conducted a functional capabilities demonstration with the low bidder. It concluded that the tested system was responsive and compliant. Protest File, Exhibits 2, 29. In particular, the agency verified that an Intel 80486DX microprocessor, with its on-board math coprocessor, was included in the system. Id., Exhibit 24. Upon looking into the system, the agency "examined the processor chip. It was labeled as a 25MHz Intel 80486DX processor. Thus there was a small error in the MSD specification. They gave us a faster processor than they had stated." Id., Exhibit 2. Nowhere does the bid identify the proffered microprocessor as a 25 megahertz chip. Award and thereafter 11. On July 21, the agency awarded the contract to MSD. Protest File, Exhibit 12. By letters of that same date, the agency notified unsuccessful offerors (including the two protesters) of the award. Id., Exhibit 32. On July 22, ISG reviewed the bids of MSD, and was orally informed that the award had been made the previous day; ISG filed a protest, dated July 22, with the agency. Id., Exhibits 1, 22. In its agency protest, ISG stated that during discussions with NCR, "ISG was informed verbally that there is no DX version of the 486/20. Therefore, there is no 'on-chip' math coprocessor," such that the bid does not comply with mandatory specifications. Id., Exhibit 1. The agency denied ISG's agency protest by letter dated July 28. Id., Exhibit 3. 12. On July 27, GCS received the agency letter dated July 21 regarding award. Protest File, Exhibits 8, 12. However, in response to interrogatories, ISG states that on July 22 "ISG placed a telephone call to GCS to determine GCS's reaction to the contract awarded to MSD. . . . GCS was not aware that a contract had been awarded and had not received official notification from [the agency]." MSD Motion to Dismiss, Exhibit A at 3 ( 5). Despite the motion to dismiss the GCS protest as untimely filed, GCS has not provided any substantive statement that it was unaware of the award on July 22. Accordingly, the Board finds as a fact that on July 22, GCS knew of the agency's award to MSD. 13. ISG filed its protest with this Board on July 31. GCS filed its protest with this Board on August 6. Based upon the record, the Board concludes that neither protester knew prior to August 6 that MSD actually provided a system utilizing the Intel 80486DX 25 MHz microprocessor. 14. A letter from a district manager of NCR Corporation to the awardee dated August 3, 1992, states: "NCR implements the Intel 486/25 MHz DX chip with a 20 MHz clock speed. The processor clock frequency is lowered to 20 MHz for synchronization with the NCR 3320 20 MHz system bus." Protest File, Exhibit 33. Neither protester disputes the contention that the NCR system MSD has proffered utilizes the Intel 80486DX 25 MHz microprocessor and operates at 20 MHz. 15. Two individuals, one from NCR and one from MSD, testified that the Intel 486DX 25 MHz microprocessor was designed to operate within the range of 8 through 25 megahertz. Transcript at 30-31, 35, 39. No party produced a witness or affidavit from Intel, nor were materials identifed as actual design specifications introduced into evidence. An undated, single page introduced into the record, represented to come from an Intel Data Book on its chips, is captioned Table 12.3 25 MHz i486 Microprocessor A.C. Characteristics. A chart depicts the frequency parameters of the chip as ranging from a minimum of 8 to a maximum of 25 megahertz. The page has stamped across its face "PRELIMINARY SEE INTEL FOR DESIGN-IN INFORMATION." Protest File, Exhibit 42. Also in the record is material from Intel Support, dated March 20, 1992, which provides an architecture overview of the Intel 486 DX microprocessor. The stated clock speeds are 25, 33 MHz. Id., Exhibit 1, Documentation at 5. Factually, the Board cannot conclude that design specifications for the Intel 80486DX microprocessor recognize operation of the microprocessor at 20 megahertz as a standard speed of operation. 16. No party contends that there exists an Intel microprocessor designated as a 486DX 20 MHz. Transcript at 37, 40, 51 (ISG's president: "In my experience in the trade there is only one Intel 486/20. That is a 486/20 SX which does not have an embedded math coprocessor."), 52-53, 64-65. Bids three, four and five 17. Protester GCS submitted the third low bid. The agency has determined that the bid is responsive on its face, although it questions whether the offered system will meet specific solicitation requirements. A determination regarding responsiveness in those areas awaits, if necessary, an FCD. Protest File, Exhibits 11, 34, 39. Intervenor MSD's second bid was fourth low. Although the agency concluded that the bid offers the brand name equipment for all designated items and is fully responsive to the terms and conditions of the solicitation, without the need to run an FCD, in fact, the bid does not offer the brand name and model number for each item. Id., Exhibits 11, 34, 40; Declaration of Weiss (Aug. 18). Protester ISG submitted the fifth low bid. The agency has concluded that the bid appears to be responsive, although an FCD, if necessary, has yet to be run. Protest File, Exhibits 11, 34, 41. Discussion ISG's initial protest at this Board contended that awardee's bid does not comply with stated evaluation criteria. In particular, the protest noted that MSD proposed to provide a system utilizing a 486/20 Intel CPU. ISG asserted that the 486/20 Intel CPU does not contain a math co-processor, such that the bid was non-responsive, finding 2. ISG also alleged that each bidder lower-priced than ISG could not receive the award-- specifically bids two through four were non-responsive, and bidder four also non-responsible. Moreover, the protest maintained: "Public policy demands that a bidder proposing a technically non-responsive offering not be able to avoid being protested by also being the next lowest offeror." ISG Protest at 3. After discovery had proceeded, and protester finally learned that awardee was providing an Intel 486DX 25 MHz CPU (with a built-in math coprocessor) not an Intel 486SX CPU (one without a built-in math coprocessor), protester amended its protest on August 17 to assert that the "proposed MSD solution violates C.7 'Hardware Technical Requirements,'" finding 3. On August 6, GCS filed its protest at this Board. GCS contended that the system awardee described as utilizing a 486/20 CPU was non-responsive. Namely, GCS asserted that if the 486/20 is a 486DX-20 CPU, Intel does not make such a CPU. GCS noted that the agency "has not been able to confirm what CPU was tested at the [FCD]. Obviously it was not an Intel 486DX-20." GCS Protest at 2. Alternatively, GCS states that if the 486/20 is a 486SX-20, then the system is non-compliant because no math coprocessor would have been bid. In a request for summary judgment filed on August 18, GCS focuses its protest on the impropriety of the agency's actions given that the 25 megahertz chip was utilized; GCS quotes paragraph C.7, finding 3, and states that the chip "was obviously designed to run at 25 mhz as stated on the chip and in their literature." GCS Motion for Summary Judgment at 2. The agency and MSD have moved to dismiss the protest of ISG for lack of standing (based on the agency's position that a bid lower-priced than ISG would obtain the award, such that protester is not an interested party), and, in the alternative, for summary relief. Subsequent to the filing of these protests, the agency determined that bidder four (MSD's alternative bid of brand name equipment) is responsive. The agency asserts that ISG, as bidder five, therefore lacks a direct economic interest in the procurement, such that it is not an "interested party," 40 U.S.C. 759(f)(9)(B) (1988), to pursue its protest at this Board. Motions for summary relief Each of the parties filed a motion for summary relief. The existence of material facts in dispute necessitated permitting the parties to develop the record. Unit Data Service Corp. v. Department of Veterans Affairs, GSBCA 10755-P-R (Sept. 30, 1992). The Board denies each such motion. Standing of ISG As the fifth low bidder, protester ISG maintains that it is the lowest-priced, responsive, responsible bidder. The protest specifically focuses on the impropriety of the award to MDS and asserts bases for rejecting the bid of each lower-priced bidder. The agency has already concluded that the second low bid is non-responsive. Finding 5. Although the agency has concluded that the third low bid (that of GCS) is responsive on its face, the agency recognizes that a functional capability demonstration must be performed. Thus, the agency has not made a final determination regarding the responsiveness of GCS's bid. Finding 17. The agency has concluded that the fourth low bid (the second bid of MSD) offers the brand name equipment, the bid is responsive, and the bidder responsible. The analysis falls short. The bid does not offer solely designated brand name and model equipment. Finding 17. The agency has not convincingly established how it could determine responsiveness of the system without a demonstration, given the allegations asserted by ISG. Further, ISG has challeged the responsibility of MSD given MSD's actions relating to its low bid. Until the facts are determined regarding the actions and intentions of MSD, the contracting officer is not in a position to make a prospective determination of responsibility. ISG has asserted that it is the rightful awardee under the protested solicitation. ISG challenges with particularity the ability of each lower-priced bidder to receive the award. The Board does not interpret the statutory definition of interested party, 40 U.S.C. 759(f)(9)(B) (1988), or the guidance of the Board's appellate authority, United States v. International Business Machines Corp., 892 F.2d 1006 (Fed. Cir. 1989), to require an agency to perform live test demonstrations of each bidder lower-priced than a protester, while a protest is pending, when the protester raises reasonable bases for deeming those bids non-responsive or bidders non-responsible. International Data Products, Corp., GSBCA 10517-P, 90-2 BCA 22,797, 1990 BPD 57. Should a protester prevail, the agency will be able to make appropriately considered determinations of responsiveness and responsibility without the Board making any such determination initially. Timeliness of the GCS protest The agency and MSD have moved to dismiss the GCS protest as untimely filed. These parties maintain that GCS learned of the award on July 22 and did not file its protest until August 6, the eleventh working day thereafter. The Board finds those assertions to be true. Findings 12-13. Given the language of the initial GCS protest, without more, the Board would dismiss the protest as untimely filed under Rule 5(b)(ii) because GCS filed its protest more than ten working days after the basis of protest was known. However, the actual agency violation asserted, and bases of alleged non-responsiveness pursued, by GCS (and ISG) are not apparent on the face of the bid nor by the agency's award of the contract. Awardee's bid does not reveal that awardee would supply, or provide for testing during the FCD, an Intel 80486DX 25 MHz. The agency's acceptance of such a system with a 25 megahertz microprocessor operating at 20 megahertz is the objectionable agency action. Neither the agency nor MSD have demonstrated how GCS should have known of this basis of protest prior to August 6. Finding 13. The specific ground of protest has been timely asserted in the motion for summary relief filed on August 18. See RMTC Systems, Inc. v. Nuclear Regulatory Commission, GSBCA 11734-P, 1992 BPD 114 (Apr. 29, 1992); University Systems, Inc. v. Defense Nuclear Agency, GSBCA 11687- P, 1992 BPD 69 (Mar. 3, 1992). GCS is before the Board in a timely fashion. Timeliness of ISG amendments Assertions that ISG has untimely contended that the agency's award to MSD violated paragraph C.7 of the solicitation, finding 3, are unavailing. ISG filed its protest with the agency and Board based upon alleged agency improprieties ISG perceived from the awardee's bid. As discovery revealed the true situation, not apparent from the face of the bid, that MSD would supply a 25 megahertz chip operating at 20 megahertz, ISG amended its protest. As is true with GCS, the final issues of non- responsiveness pursued by ISG grew out of the more basic assertions in the underlying protest. ISG filed its initial and amended protests within ten days of learning the bases therefor. Findings 11, 13. ISG's protest is before the Board in a timely fashion. Merits of the protests In its low bid, MSD describes a system configured with an Intel 80486/20, and as an Intel 80486DX. Findings 6, 7. The bid also indicates that the system will be upgraded to a 20 MHz 486DX processor. Finding 8. In fact, the NCR system bid will utilize an Intel 80486DX 25 MHz microprocessor, which will operate at 20 MHz. Findings 8, 10, 13-14. The record establishes that the microprocessor is identified and labeled as a 25 MHz chip; the record fails to establish that design specifications for that chip recognize operation of the chip at 20 MHz as a standard speed of operation. Findings 10, 15. Operating the 25 MHz microprocessor at 20 MHz is at variance with the requirement that in normal operation mode, microprocessors are to operate at the standard clock speed indicated in the design specifications. Finding 3. Accordingly, the agency should have concluded that the low bid is non- responsive. The award to a non-responsive bidder clearly violates statute, regulation, and the conditions of the solicitation. 41 U.S.C. 253b(c) (1988); 48 CFR 14.404-2(a), 14.407-1(a) (1991). Decision The protesters have demonstrated that the agency made an award to a non-responsive bidder. Thus, the Board GRANTS the protests. The suspension of the agency's procurement authority entered in the protest of ISG lapses by its terms. Order (Aug. 7, 1992). The Board revises the agency's procurement authority to preclude it from accepting any items under the improperly awarded contract. The agency is to proceed with the procurement in accordance with statute and regulation under the subject solicitation. ________________________ JOSEPH A. VERGILIO Board Judge We concur: _________________________ _________________________ ANTHONY S. BORWICK EDWIN B. NEILL Board Judge Board Judge